Taylor et al v. Acxiom Corporation et al

Filing 91

REPLY to Response to Motion re 72 MOTION to Dismiss on Common Issues and Response to Plaintiffs' Statement of Violations filed by ACS State & Local Solutions, Inc., Gila Corporation, American Electric Power Service Corporation, Southwestern Bell Telephone, LP, Texas Farm Bureau Mutual Insurance Company, Insurance Technologies Corporation, JI Specialty Services, Inc., Globe Life and Accident Insurance Company, Hawkeye Insurance Services, Inc.,, ISO Claims Services, Inc., United Teacher Associates Insurance Company, Spartan Insurance Company, Safeway, Inc.,, HEB Grocery Company, LP, The Hearst Corporation, Safety-USA Institute, LLC, U.S. Interactive, Inc., The Talbot Group, Inc., Background Information Systems, Inc., Academy, LTD, CarFax, Inc, ABC Data, American Student List Co., Inc., Aristotle International, Inc.,, Continueded.com, LLC, Driver Training Associates, Inc., Federated Retail Holdings, Inc., Household Drivers Report, Inc., Paradise Development, Inc., RealPage, Inc., Biometric Access Company, Emaginenet Technologies, Inc., LML Payment Systems Corp, Telecheck Services, Inc., Acxiom Corporation, Zebec Data Systems, Inc., Allied Resident/Employee Screening Service, Inc., ADP Screening and Selection Services, Inc., American Driving Records, Inc., FEDCHEX. LLC., Jon Latorella, Marshall Systems Technology, Inc., Source Data, Inc., URAPI, PropertyInfo Corporation, Tenant Tracker, Inc., Defensivedriving.com, Cross-Sell, Inc., InfoNations, Inc., Realty Computer Solutions, Inc., Urapi, Inc., National Statistical Service Corporation, Reliant Energy, Inc., Dallas Computer Associates, AMERICAN MUNICIPAL SERVICES CORPORATION, Acxiom Risk Mitigation, Inc.. (Attachments: # 1 Exhibit Motion for Intervention# 2 Exhibit Motion for Leave to File Amicus Curie Brief)(John, Philip)

Taylor et al v. Acxiom Corporation et al

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CHRISTIA D. POSADA, P.A.
Christian Posada, Esq. Florida Bar No. 0484792 1361 S. Federal Highway, Suite 116 Boca Raton, Florida 33432 [phone] [phone] (facsimile)

THE COREA FIR, P.L.L.C.
Thomas M. Corea Texas Bar No. 24037906 Jeremy R. Wilson Texas Bar No. 24037722 The Republic Center 325 Nort St. Paul Street, Suite 4150 Dallas, Texas 75201
Telephone: [phone] Facsimile: [phone]

ATTORNEY FOR INTERVENORS

OTSTOTT & JAMISON, P.C.
George A. Otstott Texas Bar No. 15342000 Ann Jamison Texas Bar No. 00798278 Two Energy Square
4849 Greenvile Avenue, Suite 1620

Dallas, Texas 75206
Telephone: [phone] Facsimile: [phone]

TEXAS COUNSEL FOR INTERVENORS
(Motion to Appear Pro Hac Vice pending)

IN THE UNTED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIA

RICHARD FRESCO, CARLOS BARRTT, JEFFREY HY, MARY ANN COLLIER, ROY McGOLDRICK, ROBERT PINO, KENNTH HERE TICK, RUSSELL V. ROSEN and JOEL LEVIN, Plaintiffs,
v.
§

AUTOMOTIVE DIRCTIONS, INC., a Wisconsin Corporation; EXPERIN INFORMATION SOLUTIONS, INC., an Ohio Corporation; R. L. POLK & CO., a Delaware Corporation; CHOICEPOINT PUBLIC RECORDS, INC., a Georgia Corporation; CHOICEPOINT, INC., a Georgia Corporation; CHOICEPOINT SERVICES, INC., a Georgia
Corporation; CHOICEPOINT PRECISION

§
§

§
§ § § § § §

CASE NO. 03-cv-61063-JEM

MOTION FOR LIMITED INTERVENTION

MARKETING INC., a Georgia Corporation; KNOWX LLC, a Georgia Limited Liabilty Company; SEISINT,
INC., a Florida Corporation; REED ELSEVIER, INC.,

a Massachusetts Corporation; ACXIOM CORPORATION, a Delaware Corporation; and eFUNS CORPORATION, a Delaware Corporation, Defendants.

MOTION FOR LIMITED INTERVENTION

l-A

EXHIBIT

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MOTION FOR LIMITED INTERVENTION

Come now SHAON TAYLOR, JAMS DOUGLAS BOOKER, LOWRY BRIEY,

TWILAH BROWN, JAMS D. CLARY, SHAON A. CLARY, ALICE M. COOKS,
ARANDO COOKS, ELIZABETH DeWITT, KENNTH GOSSIP, SR., KENNCE GOSSIP,

PAMLA HENSLEY, ROBERT G. HOLLINSS, CAROLYN LATHA HOLUB, BRAI
JEWELL, TRCY KARP, DAVID PATTERSON, RONN PHILIPS, JAMS ROBERTS,

LUZ AN ROBERTS, KIERLY DAWN UNERWOOD, MAYN WHITAKER, and
WILLIAM "TROY" WILSON, pursuat to Federal Rule of Civil Procedure 24, fie ths Motion
for Limited Intervention, and in support thereof, state as follows:
I.

PRELIMINARY STATEMENT

This lawsuit ("the Florida Litigation"), until now, involved a relatively simple issue:
whether Defendants, by obtaining personal information from Florida drvers' license records,
violated the Driver's Privacy Protection Actl ("DPP A"), a federal statute which provides for civil
liabilty. Plaintiffs allege that Defendants violated this statute because they obtained personal

information from the State of Florida during a time when Florida was not in compliance with the
DPP A and did not obtain drvers' express consent to sell their personal information.
The focus of the Florida Litigation has always been on actions taen in Florida. All of

the named Plaintiffs are from Florida and the Original Complaint only involves actions taen in

the State of Florida. Now, in order to settle this lawsuit, Defendants have insisted that they be
absolved of liabilty for any DPP A violations for which they may be responsible in other states.
Thus, Defendants and Plaintiffs seek to certify a national putative class from which Intervenors,
all Texas residents, cannot opt out.
i 18 V.S.C. § 2721 et. seq.

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Intervenors recently filed a Complaint in the United States Distrct Cour for the Eastern
Distrct of Texas.2 That case is styled Taylor, et al. v. Acxiom et aI, Case No. 2:07cvOl ("the

Texas Litigation"). The Texas Litigation involves significantly different claims than the Florida

Litigation. It does not appear that the issue of violations in Texas has ever been addressed or

explored in the Florida Litigation. Significantly, Intervenors have alleged that Defendats

willfully violated the DPP A entitlng them to punitive damages. Intervenors support this
arguent by presenting signed contracts between Defendats and the State of Texas in which

they acknowledge that Texas has not obtained express consent from individuals to sell their

personal inormation and in which Defendants agree to indemnfy the State of Texas for any
violations of the DPP A that might result. This difference, along with the fact that Plaintiffs in
this litigation are all from Florida make certification of a national class inappropriate. Numerous
cours have recognzed Intervenors' right to paricipate in a lawsuit in ths situation in order to
protect their rights and to preserve appellate arguents. Thus, Intervenors seek intervention for
the limited purose of objecting to class certification and approval of

the proposed settlement.

II.

PROCEDUR HISTORY
This lawsuit involves a number of consolidated actions, all fied in Florida by Florida
residents alleging violations of the Driver's Privacy Protection Act, 18 D.S.C. § 2721, et. seq.
("DPP A"). Proposed class representatives recently entered into a settlement agreement with a

number of the Defendants in this case providing for injunctive relief, class representative
incentive awards, and attorneys' fees. Hoping to insulate itself from any undentified liabilty for

violating the DPP A in any other states, the settling Defendants insisted that the settlement

2 See Complaint (attached hereto as Exhibit 1). The attached Complaint was fied with the Eastern District of

electronically on January 3,2007.

Texas

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agreement be conditioned on the certfication of a national putative class under F.R.C.P.
23(b )(2). Thus, Plaintiffs fied a Second Amended Complaint seekig certification of a class
consisting of all persons nationally whose personal information was obtained by Defendants
from a motor vehicle record - some 200 milion people.
Intervenors recently fied a lawsuit in the United States Distrct Court for the Eastern

Distrct of Texas. All of the Intervenors are Texas residents and assert that several of the

Defendants in ths litigation violated the DPP A by obtaning "personal information" from a
"motor vehicle record" from the State of Texas. Intervenors seek intervention in this lawsuit

solely to object to them, or any resident of Texas, being included in any class certified by ths

Cour. Intervenors also seek permission to challenge the terms of the settlement agreement
should they be made par ofthe putative class.

III.

ARGUMENTS AND AUTORITIES
Intervenors seek intervention for the sole purose of objecting to the certification of a
class that would include them, as well as objecting to the terms of

the proposed settlement. It is

essential that Intervenors' request be granted, as otherwse this certification and settlement will

be completely insulated from appellate review.3 In fact, the United States Cour of Appeals for
the Seventh Circuit has held that it is reversible error to disallow intervention of a proposed class

member in ths situation.4 As discussed below, Intervenors qualify to intervene as a matter of
3 Marino v. Ortiz 484 U.S. 301, 304 (1988) ("(W)e hold that because petitioners were not paries to the underlying

lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree
approving that lawsuit's settlement. . . ").

4 Crawford v. Equifax Payment Services, Inc., 20 I F Jd 877, 88 I (7th Cir. 2000)("(b )ecause only parties may appeal,

it is vital that district courts freely allow the intervention of unnamed class members who object to proposed
settlements and want an option to appeal an adverse decision.")("So in the end, it does not matter whether intervention would come under F.R.C.P. 24(a) or (b), or what the stadard of appellate review may be; the magistrate judge's order cannot survive even the most deferential kind of review. ")

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right under F.R.C.P. 24(a). Alternatively, Intervenors seek permissive intervention pursuat to

F.R.C.P.24(b).

A. Intervenors are entitled to intervene as a matter of rIebt.

Rule 24 provides two methods of seeking intervention: by right or by
permission.5 There are essentially four requirements for intervention as a matter of right: 1) the
applicant must have an "interest" in the propert or transaction which is the subject of

the action;

2) disposition of the action as a practical matter may impede or impair the applicant's abilty to

protect that interest; 3) the application is timely; and 4) no existing par adequately represents
the applicant's interest. Intervenors meet each of

these requirements.

First, in Plaintiffs' Second Amended Complaint, Plaintiffs seek, for the first time, to
extend the proposed class beyond those persons whose personal information was sold by Florida
governental agencies. The proposed class would now include any person in the nation whose

rights might have been violated by Defendants. Under the proposed settlement, Intervenors
would lose their right to pursue any remedies through a class action, effectively barng them
from recovery. Clearly, Intervenors have an interest in the outcome of

this lawsuit.

Second, as discussed above, Intervenors' abilty to pursue their own action against
Defendants wil essentially be barred and their rights to appeal would be eliminated if they are
5 Rule 24 provides in pertinent part:

a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to
the propert or transaction which is the subject of

the action and the applicant is

so situated that the disposition of the action may as a practical matter impair or
impede the applicant's abilty to protect that interest unless the applicant's
interest is adequately represented by existing parties.

(b) Permissive Intervention.

Upon timely application anyone may be permitted to intervene in an action: (1)
when a statue of the United States confers a conditional right to intervene; or

(2) when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention wil unduly delay or prejudice the adjudication of the rights ofthe original parties

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denied intervention and the proposed settlement is approved. Thus, Intervenors wil be denied
the abilty to protect their interest should intervention be denied.

Third, Intervenors' application is timely, as Plaintiffs only recently filed their Second
Amended Complaint (on December 21,2006) and the Cour has not yet taken any action on the

proposal for class certfication and settlement approvaL. In fact, the Cour's deadline for filing
responses to the motion to approve the settlement agreement is January 5, 2007.
Finally. the class representatives are simply not adequately representing Intervenors'

interest. Under the terms of

the settlement agreement, Defendants agree only to injunctive relief

(they essentially promise not to break the law in the futue) and the named Plaintiffs receive

incentive awards. The named Plaintiffs justify ths settlement on asserted weakesses in their
case, including an inabilty to show that Defendants knowingly violated the DPP A. As will be
discussed in more detail in Intervenors' Objection to Class Certfication, there is little doubt that

Defendants knowingly violated the DPPA in Texas as they obtained Texas' entire database -

some twenty (20) milion names - acknowledging in wrting that the State of Texas had not
obtained express consent for their distribution. This issue does not appear to have been explored

in the Florida Litigation. Thus, the named Plaintiffs have only focused on Florida issues and are
not protecting the rights of

plaintiffs in other states, such as Texas. Because the maner in which

the personal information at issue was obtained is different in each case, named Plaintiffs and
counsel in each of

those states are necessary to adequately protect Texas citizens' rights.

For these reasons, Intervenors assert that they meet all of the requiements for
intervention as a matter of right and ask that the Court grant their Motion.

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B. Permissive Intervention.

Even if the Cour concludes that Intervenors have no right to intervene, there can be little doubt that permissive intervention is appropriate. In fact, the United States Cour of Appeals has
held that intervention is necessar in ths situation.

6 Intervenors stand to lose substantial rights

should the proposed class be certified and the settlement agreement approved. For these reasons,

Intervenors submit that they should be allowed to intervene for the purose of protecting those
rights.

iv.
CONCLUSION
Under the terms of the proposed class and settement agreement, Intervenors would lose

numerous substantive rights. They would lose their right to opt-out and pursue their own class

action lawsuit. They would also lose the right to seek liquidated damages as provided in the
DPP A. Finally, they would lose their right to seek puntive damages for the wilfu violations of
the DPP A alleged in their lawsuit in Texas. Unless Intervenors are allowed to paricipate in ths

lawsuit and object to their loss of these valuable rights, appellate review of these loses will be

precluded. Therefore, Intervenors respectfully request that this Cour grant their Motion and
allow them the right to intervene for the limited purose of challenging class certification and the
approval of

the proposed settlement agreement.

6 Crawfordv. Equifax Payment Services, Inc., 201 F.3d 877, 881 (711 Cir. 2000)("So in the end, it does not
matter whether intervention would come under F.R.C.P. 24(a) or (b), or what the standard of

be; the magistrate judge's order cannot survive even the most deferential kind of review. ")

appellate review may

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Respectfly submitted,

CBIeLSTJ:l
Chrstian Posada, Esq.

Florida Bar No. 0484792 1361 S. Federal Highway, Suite 116 Boca Raton, Florida 33432 [phone]
[phone]

ATTORNY FOR INTERVENORS

THE COREA FIR, P.L.L.C.
Thomas M. Corea Texas Bar No. 24037906 Jeremy R. Wilson Texas Bar No. 24037722 The Republic Center 325 Nort St. Paul Street, Suite 4150 Dallas, Texas 75201
Telephone: [phone] Facsimle: [phone]

OTSTOTT & JAMSON, P.C George A. Otstott Texas BarNo. 15342000
Ann Jamson

Texas BarNo. 00798278
Two Energy Squae

4849 Greenvile Avenue, Suite 1620 Dallas, Texas 75206
Telephone: [phone] Facsimle: [phone]

TEXAS COUNSEL FOR INTERVENORS (Motion to Appear Pro Hac Vice pending)

J\0TION FOR LIMITED INTERVENTION

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CERTIFICATE OF SERVICE
I certfy that on Januar 4, 2007, I electronically filed the above Motion with the Clerk of

the Court using CM/CF. I also certify that the foregoing document is being served ths day on

all counsel of record identified on the attached Service List in the maner specified, either via

transmission of Notices of Electronic Filng generated by CMJCF or by U. S. mail for those

counelor pares who are not autorize to reive erealY NotP.:iC Filng.

Chrstian D. Posada

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CERTffICATE OF CONFRENCE

I certfy that Intervenors have conferred with all paries or non-pares who may be
afected by the relief sought in the motion in a good faith effort to resolve the iS8 s raised in the
motion and have been unable to do so.

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SERVICE LIST

Scott J. Fran
Lauren D. Levy Butler Patpas Weihu1ler Katz Craig SO SW st Street, Suite 3300 Miami, Florida 33130 R. 1. Polk & Co.

Lewis F. Collins, Jr. Butler Pappas Weihmuller Katz Craig Bayport Plaza, Suite 1100
6200 Courey Campbell Causeway

Tampa, Florida 33607 R. 1. Polk & Co.

Juan C. Enjamio Hunton & Wiliams 1111 Brickell Avenue, Suite 2500 Miami, Florida 33131 Acxiom Corporation